Weddle

This is an appeal by Nancy Skinker Weddle, executrix of the last will and testament of Isabella N. Skinker, and B. M. Switzler, attorney for said executrix, from an order overruling objections to the report of the inheritance tax appraiser and fixing an inheritance tax due by reason of the death of Isabella N. Skinker.

Chronology

i. Isabella N. Skinker died July 19, 1955.

ii. Decedent’s will was probated August 5, 1955, and Nancy Skinker Weddle appointed as executrix.

iii. At the time of decedent’s death section 901 of the Probate Code read in part as follows:

iv. By an amendment to section 901 of the Probate Code effective September 7, 1955, the fee schedule was increased as follows:

v. The inheritance tax appraiser filed his inheritance tax report and allowed as deductions executor’s and attorney’s commissions based on the “old rates” which were in effect on the date of decedent’s death.

vi. Pursuant to section 14509 of the Revenue and Taxation Code, objections were filed to the report by the executrix and her attorney, appellants.

Appellants contended that the deduction allowable for inheritance tax purposes should be computed on the new and higher rates as set forth in…

I dissent.

The majority opinion holds that the Legislature did not intend by the 1955 amendment to section 901 of the Probate Code (increasing the fees of administrators, which became effective after decedent’s death, but was in effect to fix the executor’s fees in the estate; see Estate of Johnston, ante, p. 265 [ 303 P.2d 1 ]) to make such amendment applicable in computing the inheritance tax on estates of persons who died before its effective date; that such an application of the amendment would be a gift of public money in violation of the Constitution (Cal. Const., art. IV, § 31) in that under the prior law only the old allowances for executor’s fees could be deducted from the value of the estate in computing inheritance taxes.

There is no gift of public money contrary to the Constitution when we consider the applicable law. This court held in Estate of Johnston, ante , pp. 265, 270, 271 [ 303 P.2d 1 ], that the 1955 amendment to section 901 of the Probate Code applied to persons who had died before its effective date but where the administrator’s fees had not yet been fixed. We there said: “We are of the opinion that the commissions of the executor and his attorney should…